Constitutional Limits to Municipal Authority

Constitutional Limits to
Municipal Authority
Paul V. Rost & Emily Rushing Kelly
legal counselors to local government
The Missouri Constitution
• Missouri Constitution is a limitation on
legislative power only
• Unlike federal constitution -- a grant of power
• Power of state legislature is unlimited and
practically absolute
• Americans United v. Rogers, 538 S.W.2d 711 (Mo. Banc 1976);
Kansas City v. Fishman, 362 Mo. 352, 241 S.W.2d 377 (1951).
Charter Cities
Article 6, § 19(a) Missouri Constitution
Any city which adopts or has adopted a charter …, shall
have all powers which the general assembly of the
state of Missouri has authority to confer upon any city,
provided such powers are consistent with the
constitution of this state and are not limited or denied
either by the charter so adopted or by statute. Such a
city shall, in addition to its home rule powers, have all
powers conferred by law.
Charter Cities
Art. 6, § 19(a) “clearly grants to a constitutional
charter city all power which the legislature is
authorized to grant. … even in the absence of an
express delegation by the people of a home
rule municipality in their charter, the
municipality possesses all powers which are not
limited or denied by the constitution, by
statute, or by the charter itself.”
City of Cape Girardeau v. Jett, 851 S.W.2d 114 (Mo. App. 1993)
The Missouri Constitution
• “A municipality derives its governmental
powers from the state and exercises
generally only such governmental
functions as are expressly or impliedly
granted it by the state.”
Century 21-Mabel O. Pettus, Inc. v. City of Jennings, 700
S.W.2d 809, 811 (Mo. banc 1985).
3rd & 4th Class
• "Statutory cities, acting without a
constitutional home rule charter, cannot
act without specific grants of power."
Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d
208, 212 (Mo. banc 1986), citing State ex rel. Mitchell v. City of
Sikeston, 555 S.W.2d 281 (Mo. banc 1977).
(loose paraphrase of Job 1:21)
Article 6: Local Government
§ 16. Cooperation by local governments with other
governmental units.
• may contract and cooperate with other
municipalities or political subdivisions thereof, or
with other states or their municipalities or
political subdivisions, or with the United States,
for the planning, development, construction,
acquisition or operation of any public
improvement or facility, or for a common service,
in the manner provided by law.”
Intergovernmental Cooperation
• §70.220.1 RSMO authorizes political
subdivisions to contract and cooperate with
any other municipality or political subdivision
for the planning, development, construction,
acquisition or operation of any public
improvement or facility, or for a common
service; provided, that the subject and
purposes shall be within the scope of the
powers of such political subdivision
Article 6, § 23: Limitation on ownership of corporate
stock, use of credit and grants of public funds by local
No county, city or other political
corporation or subdivision of the
state shall own or subscribe for
stock in any corporation or
association, or lend its credit or
grant public money or thing of
value to or in aid of any
corporation, association or
individual, except as provided in
this constitution.
Article 6, § 25. Limitation on use of credit and grant of
public funds by local governments—pensions and
retirement plans for employees of certain cities and
No county, city or other political
corporation or subdivision of the state
shall be authorized to lend its credit or
grant public money or property to any
private individual, association or
corporation except as provided in
Article VI, Section 23(a)…
Article 6, § 25.
…and except that general assembly may
authorize any county, city or other political
corporation or subdivision
• to provide for retirement or pensioning of
officers and employees … and
• provide for periodic cost of living increases
in pension and retirement benefits
Article 6, § 23(a)
Cities may acquire and furnish industrial plants--indebtedness for
By 2/3 vote, “any county, city or incorporated town or
village … may become indebted for and may purchase,
construct, extend or improve plants to be leased … to
private persons or corporations for manufacturing,
warehousing and industrial development purposes,
including the real estate, buildings, fixtures and
Article 3 Limitations on State’s use of funds and credit
• Art. 3, § 38(a). The general assembly shall have no
power to grant public money or property, or lend or
authorize the lending of public credit, to any private
person, association or corporation, excepting aid in
public calamity, ...
• Art. 3, § 39. The general assembly shall not have power:
(1) To give or lend or to authorize the giving or lending
of the credit of the state in aid or to any person,
association, municipal or other corporation;
No Lending of Credit…
Except where there is a PUBLIC
• No violation of §§ 23 or 25 occurs where the
expenditure of public funds is for a public
purpose. State ex rel Mitchell v. Sikeston, 555 S.W.2d
281 (Mo banc 1977) citing State ex rel. Farm Elec. Coop.,
Inc. v. State Env. I.A., 518 S.W.2d 68 (Mo. banc 1975);
State ex rel. City of Boonville v. Hackmann, 293 Mo. 313,
240 S.W. 135 (Mo. banc 1922).
• “It has long been recognized in Missouri ... that
the constitutional prohibitions noted are not
violated when money and property are expended
or utilized to accomplish a 'public purpose’.” Id.
Public Purpose Exception
• “The public purpose doctrine again
applies. This court has held in similar
situations that such an exception or
qualification to the prohibition does
exist…” Menorah Medical Center v. Health & Educational Facilities
Authority, 584 S.W.2d 73, 79-80 (Mo. 1979)
• “The presence of a legitimate ‘public purpose’
makes society or the people of this state the
direct beneficiary of the expenditures.” Americans
United v. Rogers, 538 S.W.2d 711 (Mo banc 1976)
• “the law is clear in Missouri that an overriding public
purpose will not suffer constitutional death at the
hands of incidental private benefit.” Id.
Donations by Local
• Art. 6, § 25 prohibits expenditure of any
public funds for a private purpose.
• City can accept gifts and donations but
not donate funds to any non-public
Art. 10, §3: Limitation of Taxation to
public purposes
• “Taxes may be levied and collected for public
purposes only …”
• Actually uses “Public Purpose”; unlike Art. 6, §§
23 and 25 which do not
• “it is universally agreed that an attempt to raise
money by taxation for private purposes is
unconstitutional; that it is a taking of property
without due process of law; that it violates
fundamental principles inherent in free
government” Dysart v. St. Louis, 321 Mo. 514,
521 (Mo. 1928)
Art. 1, § 7. Public aid for religious purposes-preferences and discriminations on religious grounds
That no money shall ever be taken
from the public treasury, directly or
indirectly, in aid of any church, sect
or denomination of religion, or in
aid of any priest, preacher, minister
or teacher thereof, as such; and that
no preference shall be given to nor
any discrimination made against any
church, sect or creed of religion, or
any form of religious faith or
Art. 9, § 8. Prohibition of public aid for
religious purposes and institutions
Neither the general assembly, nor any county, city, town,
township, school district or other municipal corporation, shall
ever make an appropriation or pay from any public fund
whatever, anything
• in aid of any religious creed, church or sectarian purpose,
• or to help to support or sustain any private or public school,
academy, seminary, college, university, or other institution
of learning controlled by any religious creed, church or
sectarian denomination whatever;
nor shall any grant or donation of personal property or real
estate ever be made by the state, or any county, city, town, or
other municipal corporation, for any religious creed, church, or
sectarian purpose whatever. Mo. Const. Art. IX, § 8
U.S. Constitution
First Amendment
Congress shall make no law respecting an
establishment of religion …
U.S. Constitution
First Amendment
Lemon v. Kurtzman, 403 U.S. 602 (1971)
State aid must have a:
1) secular legislative purpose
2) a primary effect other than the
advancement of religion, and
3) no tendency to entangle the state
excessively in church affairs
Separation of Federal and State
• Missouri constitution is more ‘restrictive’ than
the First Amendment to the United States
Constitution in prohibiting expenditures of public
• Long established constitutional policy of the State
of Missouri insists upon a degree of separation of
church and state to probably a higher degree
than that required by the First Amendment.
Luetkemeyer et al. v. Kaufmann et al., 364
F.Supp. 376 (W.D.Mo.1973), affirmed, 419 U.S.
888, 95 S.Ct. 167, 42 L.Ed.2d 134 (1974).
Article 6, § 26(a) Limitation on
indebtedness of local governments
without popular vote
• No county, city, incorporated town or village,
school district or other political corporation or
subdivision of the state shall become indebted
in an amount exceeding in any year the
income and revenue provided for such year
plus any unencumbered balances from
previous years, except as otherwise provided
in this constitution.
Debt Limits
• Expenditure < Revenues of current year + any
previous surplus
• Unless there is a vote
• Accordingly, long-term contracts (more than 1
year) usually contain “annual appropriation"
clauses or other provisions that allow
cancellation or otherwise satisfy the debt
Debt Limits - Article 6, §26(a)
• Does NOT require political
subdivision to measure entire
contract obligation as a current
expenditure if paid over time
• Only payments due in a particular
fiscal year are considered
expenditures for determining
whether expenditure limitation is
Debt Limits
• City of Licking issued $ 595,000 of Certificates of
• $ 55,130 annual payments for 15 years.
• Not required to measure entire $ 595,000 as a current
expenditure -- only $ 55,130 payment was expenditure
for current fiscal year
• “Therefore, by only considering the first year's
payment as an expenditure, it is clear that Licking did
not exceed the expenditure limitation”
Burks v. City of Licking*, 980 S.W.2d 109, 115 (Mo. Ct. App. 1998)
*Texas County,
Missouri, is now
the geographic
center of the U.S.
Article VII, Section 6. Penalty for nepotism.
Any public officer or employee in this state who
by virtue of his office or employment names or
appoints to public office or employment any
relative within the fourth degree, by
consanguinity or affinity, shall thereby forfeit his
office or employment.
Relations to the 4th Degree
(Self or Spouse)
First Degree
Second Degree
Grandchild Brother/Sister Grandparents
Third Degree
Great Grandchild Niece/Nephew Aunt/Uncle
Great Grandparents
Fourth Degree
Great Great Grandchild
Grand Niece/Nephew
First Cousin
Great Aunt/Uncle
Great Great Grandparents
A husband is related by marriage (affinity) to his
wife’s relatives in the same way that she is related to
them by blood (consanguinity) and she to his family
in the same way, but the kindred of the spouses are
not related to one another (e.g., a brother of the
husband is not related to a brother of the wife, etc.).
Half relationship is the same as a whole relationship.
Step relationship is the same as a blood relationship.
A relationship by marriage (affinity) terminates if
death or divorce occurs.
• Art. VII, Section 6 is “self-executing”
– Unless the individual resigns, judicial action
assuring due process is necessary
– Proper mechanism for removal is quo warranto
• State ex rel. Nixon v. Wakeman, 271 S.W.3d 28 (Mo.
App. W.D. 2008); State ex rel. Attorney Gen. v. Shull, 887
S.W.2d 397 (Mo. banc 1994)
Harsh realities for nepotism
• You can’t retroactively “fix” the violation
– Rescinding the appointment doesn’t cure violation
– Can’t resign and be reappointed either
• State ex rel. Nixon v. Wakeman, 271 S.W.3d 28 (Mo. App.
W.D. 2008)
• Intent (or ignorance) is irrelevant
• State ex rel. Attorney Gen. v. Shull, 887 S.W.2d 397 (Mo. banc
• Greater impact on small municipalities
• Be proactive
– Educate public officials and employees
Right to hold office
Article VII, Section 12. Tenure of office.
Except as provided in this constitution, and
subject to the right of resignation, all officers
shall hold office for the term thereof, and until
their successors are duly elected or appointed
and qualified.
Article VII, Section 12
• Doesn’t apply to removal cases
• What about an incumbent who loses at an
election but the winning candidate fails to qualify
for office?
– The incumbent doesn’t hold over and a vacancy is
– However, if the incumbent does hold over under some
claim of right, actions taken as de facto officer are
considered valid as to the public or the rights of third
persons, just as if they had been a de jure officer.
• State ex rel. Dalton v. Mouser, 284 S.W.2d 473 (Mo. 1955)
Article VII, Section 13. Limitation on increase of
compensation and extension of terms of office.
The compensation of state, county and
municipal officers shall not be increased during
the term of office; nor shall the term of any
officer be extended.
Specific statutory limitation
3rd Class -- Compensation of officers and employees. 77.440
RSMo. The council shall have power to fix the compensation
of all officers and employees of the city.
4th Class -- Salaries fixed by ordinance. 79.270 RSMo. The board
of aldermen shall have power to fix the compensation of all
the officers and employees of the city, by ordinance. But the
salary of an officer shall not be changed during the time for
which he was elected or appointed.
Villages -- Trustees--power of appointment. 80.240 RSMo. Such
board of trustees shall have power to appoint an assessor,
collector, marshal, treasurer, and such other officers, servants
and agents as may be necessary, remove them from office,
prescribe their duties and fix their compensation.
What about Bonuses?
Article III, Sec. 39(3) prohibiting retroactive
“extra” compensation.
– prohibits the grant of “any extra compensation,
fee or allowance to a public officer, agent, servant
or contractor after service has been rendered or a
contract has been entered into and performed in
whole or in part”
• “Bonuses” are prohibited to the extent they
are deemed compensation after the service
has been rendered.
• What about the Christmas ham, the year-end
gift card or the $50 cash gift?
What can you do to recognize
• Utilize cost of living adjustments
• Consider merit increases
– So long as it is not given during the employee or
officer’s “term”
– Increase at the time of reappointment
Article X, Section 25. Sale or transfer of homes
or other real estate, prohibition on imposition
of any new taxes, when.
After the effective date of this section, the state,
counties, and other political subdivisions are
hereby prevented from imposing any new tax,
including a sales tax, on the sale or transfer of
homes or any other real estate.
• Adopted November 2, 2010
legal counselors to local government
legal counselors to local government
These materials and the related presentation are intended for discussion purposes and to provide
those attending the meeting with useful ideas and guidance on the topics and issues covered. The
materials and the comments of the presenters do not constitute, and should not be treated as, legal
advice regarding the use of any particular technique, device, or suggestion, or its legal advantages or
disadvantages. Although we have made every effort to ensure the accuracy of these materials and
the presentation, neither the attorneys presenting at this meeting nor Cunningham, Vogel & Rost, P.C.
assume any responsibility for any individual’s reliance on the written or oral information presented.

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